Citation Nr: 0945591
Decision Date: 12/01/09 Archive Date: 12/08/09
DOCKET NO. 06-38 940 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Crohe, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from
June 1966 to February 1970. This case is before the Board of
Veterans' Appeals (Board) on appeal from an October 2006
rating decision by the Pittsburgh Regional Office (RO) of the
Department of Veterans Affairs (VA).
FINDING OF FACT
The Veteran has a bilateral hearing loss disability that is
related to his active military service.
CONCLUSION OF LAW
Bilateral hearing loss was incurred in active military
service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.304 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify & Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) defines VA's duty to assist the veteran in the
development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).
The notice requirements of the VCAA require VA to notify the
veteran of what information or evidence is necessary to
substantiate the claim; what subset of the necessary
information or evidence, if any, the claimant is to provide;
and what subset of the necessary information or evidence, if
any, VA will attempt to obtain. 38 C.F.R. § 3.159(b), 73 FR
23353-56 (April 30, 2008). The requirements apply to all
five elements of a service connection claim: veteran status,
existence of a disability, a connection between the veteran's
service and the disability, degree of disability, and
effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, insufficiency
in the timing or content of VCAA notice is harmless if the
errors are not prejudicial to the claimant. Conway v.
Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). In any
event, the Veteran has not demonstrated any prejudice with
regard to the content of the notice. See Shinseki v.
Sanders, 129 S.Ct.1696 (2009)
Given the favorable disposition of the claim for service
connection for bilateral hearing loss, the Board finds that
all notification and development actions needed to fairly
adjudicate the claim have been accomplished.
II. Service Connection Legal Authority
Service connection will be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1)
medical evidence of a current disability; (2) medical or, in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disability. Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet.
App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of
establishing the second and third Shedden/Caluza element is
through a demonstration of continuity of symptomatology.
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10
Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12
Vet. App. 296, 302 (1999). Continuity of symptomatology may
be established if a claimant can demonstrate (1) that a
condition was "noted" during service; (2) evidence of post-
service continuity of the same symptomatology; and (3)
medical or, in certain circumstances, lay evidence of a nexus
between the present disability and the post-service
symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson,
12 Vet. App. at 253 (lay evidence of in-service incurrence
sufficient in some circumstances for purposes of establishing
service connection); 38 C.F.R. § 3.303(b).
In relevant part, 38 U.S.C. § 1154(a) requires that the VA
give "due consideration" to "all pertinent medical and lay
evidence" in evaluating a claim to disability or death
benefits. Lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (2) the
layperson is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time supports
a later diagnosis by a medical professional." Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact,
competent medical evidence is not necessarily required when
the determinative issue involves either medical etiology or a
medical diagnosis. Id. at 1376-77; see also Buchanan v.
Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v.
Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and sensorineural hearing
loss becomes manifest to a degree of 10 percent within one
year from the date of termination of such service, such
disease shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2009).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d).
For the purpose of applying the laws administered by VA,
impaired hearing will be considered a disability when the
auditory threshold for any of the frequencies of 500, 1000,
2000, 3000, and 4000 Hertz is 40 decibels or greater; the
auditory thresholds for at least three of these frequencies
are 26 decibels or greater; or speech recognition scores
using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385 (2009).
III. Analysis
Although the Board has an obligation to provide adequate
reasons and bases supporting this decision, there is no
requirement that the evidence submitted by the veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate this claim for increase,
and what the evidence in the claims file shows, or fails to
show, with respect to the claim. See Gonzales v. West, 218
F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober,
14 Vet. App. 122, 128-30 (2000).
The Veteran claims that had noise exposure during his
service. Specifically, he contends that he was exposed to
noise while maintaining diesel generators, diesel tactical
vehicles, and electronic transmitters. He indicated that he
did not wear hearing protection at the time. His DD Form
214 confirmed that he was an engineman in the Navy and worked
in engine mechanics. In his November 2006 notice of
disagreement, he also reported exposure to explosions, booby
traps and gunfire that was constant during combat training.
In December 2008, he submitted photos of him firing an M-16
in Vietnam in 1968 as well as pictures of the diesel trucks
and a diesel generator. The Board finds that as the Veteran
is competent to describe events such as being exposed to
noise while maintaining diesel generators, diesel tactical
vehicles, and electronic transmitters, and from gunfire,
etc., and his DD Form 214 and photographs support his
contentions, noise exposure in the military is conceded. See
38 U.S.C.A. § 1154(a).
The Board notes that the Veteran's service treatment records,
including a January 1966 are negative for any complaints,
treatment, or diagnosis of bilateral hearing loss by VA
standards. January 1966 audiometric testing revealed
puretone thresholds of 15, 0, 5, 5, and 15 decibels (db) in
the right ear and 5, 5, 5, 5, and 25 db in the left ear, at
500, 1,000, 2,000, 3,000, and 4,000 Hertz (Hz), respectively.
On February 1970 separation examination, whispered and spoken
voice testing was 15/15, bilaterally. However, the absence
of in-service evidence of hearing loss (by VA standards) is
not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App.
87, 89 (1992). Evidence of a current hearing loss disability
and a medically sound basis for attributing such disability
to service may serve as a basis for a grant of service
connection for hearing loss. See Hensley v. Brown, 5 Vet.
App. 155, 159 (1993).
Although no hearing loss was noted on April 1970 VA pension
examination, February 2006 to May 2006 treatment records from
Altoona VA Medical Center showed that the Veteran had a
current bilateral hearing loss by VA standards. On April
2006 audiometry, puretone air conduction thresholds were 15,
15, 25, 70, and 85 db in the right ear and 20, 25, 40, 75,
and 95 db in the left ear, at 500, 1,000, 2,000, 3,000, and
4,000 Hertz (Hz), respectively.
In March 2007, Dr. R. K. A., a private physician, reported a
history of the Veteran being exposed to loud explosions at
close range and to diesel engines and gun fire while in the
military service. A comprehensive evaluation of his hearing
in a sound proof room found that he had bilateral severe
sensorineural hearing loss from 4000 Hz and was not able to
hear at 8000 Hz. He also had significant loss at 2000 Hz.
His discrimination score was good at 65 to 70 db loudness.
Dr. R. K. A. opined that the Veteran's hearing loss was most
likely due to noise exposure in the military. Dr. R. K. A.
added that it was likely that this kind of hearing loss would
not be detected on a whisper voice hearing test at the time
of discharge from the military. The Board does not find the
fact that the Dr. R. K. A. failed to review the claims file a
reason to discount the opinion. Here, Dr. R. K. A. relied
upon the Veteran's own self- reported history of noise
exposure and onset of symptoms. Such reliance only warrants
the discounting of a medical opinion when the opinion is
contradicted by other evidence in the record or when the
Board rejects the assertions of the Veteran, which is not the
case here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-33
(2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).
In fact, the Board has conceded the Veteran's assertions of
in-service noise exposure. Therefore, the Board finds Dr. R.
K. A.'s medical opinion to be competent and probative on the
issue of medical nexus.
Furthermore, on May 2008 VA audiological evaluation, the
examiner noted that the claims file was reviewed. The
examiner summarized the medical records and noted that the
January 1966 entrance examination included an audiometry that
revealed air conduction thresholds showing that the Veteran
possessed a bilateral high-frequency hearing loss on
enlistment. He had a 45 db hearing loss at 6000 Hz in the
right ear and a 25 db hearing loss at 4000 Hz and a 55 db
hearing loss at 6000 Hz in the left ear. The examiner noted
that the whispered and spoken voice testing provided at
discharge would be a poor indicator for high frequency
hearing loss, which might go undetected for these exams. The
examiner noted that Dr. R. K. A. found that the Veteran's
bilateral high frequency hearing loss progressed a bit more
than that found on the enlistment physical. During the
examination, the Veteran reported that he served in the Navy
for four years as a diesel engine mechanic. He worked around
engines, generators, and trucks. He reported that he was
also exposed to multiple explosions during counter insurgence
training and did wear hearing protection. He denied any
occupational or recreational noise exposure outside of the
military. Audiological testing revealed puretone thresholds
of 10, 10, 30, 60, and 85 db in the right ear and 10, 10, 40,
75, and 90 db in the left ear, at 500, 1,000, 2,000, 3,000,
and 4,000 Hertz, respectively. Speech recognition was 90% in
the right ear and 88% in the left ear. The examiner opined
that based on the audiologic results and c-file review, it
was possible that the hearing loss could be service
connected.
Given the medical and lay evidence outlined above, the Board
finds that the Veteran's bilateral hearing loss was incurred
due to noise exposure in active service. See 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Significantly,
both Dr. R. K. A., a private doctor, and the May 2008 VA
examiner indicated that the Veteran's hearing disabilities
were linked to noise exposure in service or could be
connected to his service. There is no competent medical
evidence to the contrary regarding the etiology of the
Veteran's bilateral hearing loss. Therefore, the Board
concludes that service connection for bilateral hearing loss
is warranted.
ORDER
Entitlement to service connection for bilateral hearing loss
is granted.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs